Posted
by
ScuttleMonkey
on Monday March 09, 2009 @04:02PM
from the start-digging-your-legal-foxholes-now dept.

TechDirt is reporting that in response to the frustrations with Apple's app store dictatorship, a few developers are looking to set up their own alternative app stores. Alternate app stores would only work on jailbroken phones, making their adoption scope limited, so the question is whether Apple will go after these start ups on the legal battlefield. "Apple, which collects a 30% commission from sellers on its store, doesn't break out the site's revenue. Brokerage firm Piper Jaffray estimates the site generated about $150 million in sales last year and projects total sales will grow to $800 million this year. Apple did not respond to requests for comment. But it has said in the past that with the iPhone it was trying to strike a balance between a closed device like the iPod and an open device like the PC."

On what basis?It isn't illegal to sell or offer gratis software for a platform.It isn't illegal to setup a website.

Apple can claim whatever they want about jailbreaking, but the only people they can sue over it are the people developing jailbreak tools and the people using them. What does this online store have to do with either of those groups?

At least until someone posts a link, or the jailbreaking application itself.

Sure, they can delete those posts/users... but that pisses off the users and frustrates the n00bs "how do i do this???"... the store dies, a new one opens, community withers, ideas lose momentum, people go back to the 'Apple' store because "it's always there"... open-stores fail.

One has to ask what the market sector is here since it is inconvenient for both developers and users. And it seems to me it is, perhaps obviously, only going to be people who have to have contracts with companies that don't use iphones.

That is to say, as a user there is the problem that I can't update my iphone easily. Each time I try there's a high likelihood my jailbreak will bust. And it's also possible my non-apple approved applications will also break. So there's no assured path forward when there is a pressing need to update the phone comes along. even trivial issues could become strong motivations to update: for example perhaps I need a new verison of quiktime to view some new content I want to see.

And for developers. Well why bother when there is the android market beckoning. Surely that market is going to swamp the jailbroken iphone market shortly.

So my feeling is that this ecosystem is going to shrink not grow with time as android takes over and apple issues enough annoying needful updates.

"Apple will destroy them financially by tying everything up in court."

Now imagine if they took those resources and used them to get in front of the developer requests for iPhone/iPod. They would build a better system for developers and users and would easily win competing on the merits of what they sell rather than an attempt to stifle what I think is legitimate competition.

Actually, they could go after them for contributory copyright infringement. They just have to prove the Website operator knew about the infringement of Apple's copyright, contributed to it in any way including facilitating it or motivating it, and profited from it. I don't like said laws, but they do exist and are enforced.

Apple can claim whatever they want about jailbreaking, but the only people they can sue over it are the people developing jailbreak tools and the people using them. What does this online store have to do with either of those groups?

We heard very similar things during the commercial P2P cases. Don't listen to me or 'TubeSteak' though, Slashdot isn't the place to get your legal advice.

I don't think the government or courts need to get involved in this at any point (unless Apple sues someone or someone sues Apple of course - then the courts won't have any option).

I mean, sure the app store is a closed market/process and a damaged one at that. Eventually, if Apple sticks to this model it will drive away developers to other platforms, instead of just driving them away to find app store alternatives as is currently the case. For that to happen, Android/Palm/Symbian/Winmo need to present one

Lawsuits are expensive. It would probably be easier and cheaper for Apple to not allow any future upgrades or updates of their software to install on jail-broken devices. They should also advertise this fact in order to discourage customers from making unauthorized modifications. Those who still insist after all that in modifying their devices in a disallowed manner, should be free to do so.

nope, because you dont have to buy a iPhone, same argument as always. If the iPhone where the ONLY phone on the market, yes a case can be made, but its not nor is it the only phone to offer apps, and Apple doesnt do anything to prevent other players from having the same Apps AS the iPhone has, and thus doesnt do anything all that monopolistic.

That argument doesn't work. eBay was not the only online auction system on the Internet, but they got done like a dinner for third-line forcing when they tried to make everyone in Australia only use PayPal.

Well, arguably Ebay is the most popular auction site. The iPhone is by far not the most popular phone. I think I have seen more Samsung Propels in use then iPhones. Sure, most everyone wants an iPhone and it is rather popular for its limitations (one carrier, expensive plan, etc), but compare the iPhone's marketshare in phones to Ebay's in online auctions and you will see that Ebay is very, very, popular, the iPhone... Not so much.

I'm going to go out on a limb and bet the "service/product is really really really popular" clause isn't in the law. if the law didn't apply because there were alternatives, ebay's lawyers would have handled that no problem.

A fairer comparison would be the iPhone's market share for smartphones. Not all phones play in this space. Your point could still hold, I have no idea what these numbers are but to equate the market for mobile talking with the market for all mobile computing because the iPhone is also a phone is a bit over simplistic.

I understand your frustration, but the two things aren't even remotely similar. When Apple makes you pay for your apps at the Ap store with Apple dollars issued by the Apple bank, you might have a case.

While this is true, there's a much stronger argument that eBay has monopoly-like market power when it comes to online auctions than exists for the iPhone.

If you want a phone or PDA or convergence device, there's nothing about the *market* that would compel you to buy an iPhone. If you need to auction something online, there are definitely pretty powerful market reasons to go for eBay. It doesn't really matter much if Apple suddenly forbids all third

That argument doesn't work. eBay was not the only online auction system on the Internet, but they got done like a dinner for third-line forcing when they tried to make everyone in Australia only use PayPal.

As I understand it, third-line forcing is when you refuse to sell one good or service unless the customer agrees to buy another good or service. In the case of eBay and PayPal, by not allowing you to pay using another service, they were making your ability to purchase a product on eBay contingent upon yo

That argument doesn't work. eBay was not the only online auction system on the Internet, but they got done like a dinner for third-line forcing when they tried to make everyone in Australia only use PayPal.

No, but they had enough of the market for antitrust regulators to rule they had overwhelming influence on the online auction market (with approximately 83% of sales going through one of their sites). The rule of thumb for investigators is often 60% or 70%

Apple's iPhone accounts for 17% to 28% of the smartphone market and less of the cell phone market in the US; making it not overwhelmingly and dominant not even the biggest player.

nope, because you don't have to buy a iPhone, same argument as always.

You may note the key words "in Australia", where this kind of act is quite illegal, its like Nokia saying that their phones can only be bought from Harvey Norman and preventing wholesalers from selling to any other retailer, in Australia, this act is against the law.

In other words if you want to sell something in Australia, you cant use the law to make the retailer exclusive.

Because to date, the only android phone I see is powered by T-mobile. T-mobile isn't even offered in this area. People keep speaking about how great Android will be. The problem is the "will be" part. The iPhone is here today, works, and has some 12 million users. If in two years someone has a better offering powered by Android, I'll look at it.

We've been looking at mobile platforms to develop for, and our top two is Blackberry and iPhone. We had to make sure our sites and apps worked on those two pla

The worst thing about the Microsoft antitrust trial is that it has conditioned Slashdotters into thinking that any perceived slight against competitors (In a capitalist system? You don't say!) is just cause for a government lawsuit.

Oh, I don't think there's any cause for a lawsuit. Let Apple continue the old game of restricting the blood supply to one of its better products. It's the reason why nine out of ten personal computers to this day are PCs. Apple is still the navel-gazing Napoleon-complex control-freak company it ever was.

I very much disagree - systematic attempts to play poorly with competitors, regardless of market position, should be considered anticompetitive - it's the DEFINITION of anticompetitive. It's also bad engineering, IMO.

Does Apple de-list applications that compete with products they are planning to offer?

I'm certainly not a lawyer in any country and not very familiar with Australia's laws in general, but i am under the impression that third-line forcing requires the sale of a product or service to be dependent on a wholly independent product provided by a separate company.

In the Ebay case you mention, Ebay and Pay Pal provide services independently of each other and are separate corporate entities (though ebay does own pay pal) and that is why the issue of third line forcing comes up. On a cursory search, i

Except when it isn't. "Open" means diddly squat to most users. "Open" platforms that become suitably popular result in applications like punch-the-monkey downloads and pseudo-useful malware.

Yes, *nix has an intrinsically better security model. Yes, OSX shares most of that security model. Yes, *nix derivatives are going to be more resistant to automated virus attacks and the like due to their open nature and simpler (read: understandable) security models.

But all systems, Unix, OSX, Windows, and BeOS share a common vulnerability: the end user. PEBKAC*. No security model will insulate systems against their owners, though Microsoft shows signs of wanting to go that direction, so does Apple.

Just like moderated forums (like Slashdot) work to filter out the crappola, so too can a pseudo-open environment such as Apple's app store - they want to weed out the stuff that's likely to piss anybody off, provide only good-quality softwares that won't hork their systems, and also BTW compete with them.

All in all, it's not a bad idea. It's not for everyone, and if you want the freedom to install punch-the-monkey applications, you sure can. In a sense, my "open" Fedora laptop exists in a balance between closed and free: I basically don't install applications that aren't found in a yum repo that I trust. I don't install stuff from tarballs. I don't dicker with binary files. I could, but I won't. Even when the door is as open as possible, I still prefer the safety provided by a vendor, so for me, I've chosen a more "closed" route.

Not everyone wants to be a computer weenie, and it's OK that Apple recognizes this fact!

I don't think we're discussing open vs closed source here. I think we're talking open vs closed market. The problem is Apple is a giant filter that limits what is allowed to be sold in the App Store. These people want to be able to write and sell anything they like. The trouble is that Apple just won't let them do it.

The problem I have is that they can write/develop anything they want, and they can even sell it for any price they want, they just can't do it through Apple's store.

So who the hell cares? Just because you write a great book doesn't oblige Dymocks to sell it. You may have trouble getting anyone to sell it. You might - gasp - have to resort to selling it on the Internet.

Just like the guys in the article are doing. Big deal, grow up, and stop waiting for the world to solve you problems for you.

True. But according to Apple, jailbreaking your phone is illegal (under the DMCA or other such nonsense), so any sales that aren't going through Apple's own app store are all occurring on a black market of sorts.

Of course, that's something you know going into it, unlike your example of a book which you have no way of knowing whether people will carry it or not.

The problem I have is that they can write/develop anything they want, and they can even sell it for any price they want, they just can't do it through Apple's store.

The insinuation in several other comments is that Apple probably thinks it has the right under 17 USC 1201 and foreign counterparts to shut down jailbreak-based app stores for iPhone and iPod Touch devices, and it will sic its lawyers on the operators of the store and the developers of the most popular apps.

But if you buy a Ford, you have to by Exxon Gas only, and you can only carry people and things in your truck which have been approved by Ford, and you can only use Ford parts, and you can only use Ford windshield washer fluid, and the radio will only tune in the Ford Station.

If you put any item not approved by Ford and sold by Ford in the truckbed your warranty is void and you committed a DCMA violation.

But it's not like Apple isn't very upfront about their policies, both for users and developers. What we have here, per your analogy, is people knowing these Ford limitations and buying them* anyways after deciding that the benefits of buying Ford outweigh the negatives you've just listed.

Apple is not UP Front with their application denial policy. It has never been explicitly publicized, and it is enforced with whimsy and capacious inconsistency. They disallow one app but allow another that does the exact same thing. They disallow competent email apps because they would "compete" with the built in Email app. Compete? (They mean "show up".)

Some apps they refuse to give because Steve Jobs says NO. No other reason. The Iphone Camera can take movies. (Most cell cameras can). Steve says NO. If you jailbreak you can take movies.

If you live in Apple's world, have a Mac at home, you probably think this is just the way it is. But if you come from a Linux or Windows environment you can not conceive of why one Fart app is denied while another is approved. Why you can't send MMS on the device.

And because you are from the Mac world this is ok by you, you are so used to being told exactly what you can and can't do by Apple you know no other way.

1) What does that matter? If ford was 'upfront' about having to buy exxon gas, you think that would somehow make it ok?

2) I'm sorry, where is clearly published that only way you can legally load an app is through their app store. Sure they mention they have an app store and they make great efforts to tell us how great it is, but where does it say, "And if you don't think its great too, tough shit, that's the only option."

I call bullshit. There are plenty of apps available from the appstore that I think most people would agree are of extremely low quality. Apple wants to profit off of every piece of software that is made for the iphone, hence the app-store etc. They will continue to do this until developers lose interest because of more flexible devices with higher market shares. Until then, they will stand behind this quality argument which is clearly a load of wet poop.

It's not so much about low quality apps as potential maliciousness. A device that is always connected to the internet could be very damaging. Imagine the power a malicious software developer would have if he had access to everything - GPS, voice conversations, text messages, browser history, etc. A virus on the iPhone would be bad for the Apple name.

While I think the app store should be virtually open, I like the fact that Apple vouches for everything that goes through it.

Apple wants to regulate the quality of third-party software for their platform.

The "correct balance" is not necessarily what Apple wants.

So, you're wrong--the correct balance is between.

This does not follow from your previous statement. It is an undeserved conclusion and a bald statement of opinion, not a fact.

When you call someone wrong, it generally does help to have an actual argument besides a reference to Authority especially when it is easily proven that the Authority is not looking for the correct balance - they are looking for the bottom line.

Even if the iPhone was the most popular phone on the planet, that doesn't mean it has a monopoly. For example, if the iPhone say, has about 5% marketshare of all phones (which, I doubt they do), there are still 95% of phones that aren't iPhones that might not have the individual sales to make up to 5% but when put together easily overwhelm the iPhone in terms of sales and use.

You're right that Slashdot has story after story on the Iphone, although none of them AFAICR claim that - instead we get pointless spam/trivia such as "You can now read this webpage on an Iphone" (as if reading a website on a phone was something new or interesting). Even if there was such a story, that doesn't make such an absurd claim true.

Apple are not a monopoly (or even remotely close), so they don't have to play by monopoly rules.

Apple are not a monopoly (or even remotely close), so they don't have to play by monopoly rules.

That remains to be seen.

Apple can not invite third party developers to their store and then impose arbitrary and inconsistent restrictions on one application which do not apply to all. Once you open your lunch counter for business you can no longer choose to let in Baptists but not Catholics, Whites but not Blacks and hide behind the fact that there are other lunch counters in town.

You would be first in line if Microsoft prevented you from running OpenOffice, or Apple locked Firefox off of the Mac. Yet fo

Apple are not a monopoly (or even remotely close), so they don't have to play by monopoly rules.

That remains to be seen.

True. Apple may well have monopoly influence on the portable, digital music player market. Not that suchlike makes much difference in this case.

More pertinent is that there are laws on restricting trade that apply to non-monopolies and in some jurisdictions Apple's actions may fall afoul of them.

Apple can not invite third party developers to their store and then impose arbitrary and inconsistent restrictions on one application which do not apply to all. Once you open your lunch counter for business you can no longer choose to let in Baptists but not Catholics, Whites but not Blacks and hide behind the fact that there are other lunch counters in town.

Ummm. Wow. In the US businesses are restricted from discriminating based upon race, creed, color, national origin, or sex. Aside from that, they can do business with a person (or not) as they like.

You would be first in line if Microsoft prevented you from running OpenOffice, or Apple locked Firefox off of the Mac.

How does creating a device tied to your store not meet the definition of an unfair monopoly?

Well - because it's not a monopoly at all. To clarify, suppose Apple NEVER released a development kit at all - and so, there were NO additional apps. Would the iPhone constitute a monopoly then? No. So extending its capability, and providing an outlet for that extended capability does not suddenly put it in the monopoly category.

Now, having said that, I agree with the colloquial statement that the App Store is a monopoly - note, colloquial.

Seriously, if you think Apple saying "Our apps only work on iPhones" is a problem, try spending half an hour getting your phone to connect to your laptop via Bluetooth because your carrier decided it was a feature they'd rather "give you" after the cost of some $40 "Media Kit".

In US law, for any company to be a monopoly, it has to be the only player in the market, or have a dominant market share in the US market. Microsoft owns 90% of the desktop operating system market. That's a monopoly. Apple isn't even the #1 phone manufacturer in the US yet. It's getting there, but not yet. It's far from dominant in the cell phone industry.

If you are a monopoly, you can't "bundle" basically, because that means you are using your leverage in one market to take advantage of another. If you aren't a monopoly, then it's up to the market to decide if the bundle you created is a buoy for greater sales, or an anchor that sinks you to the bottom. Microsoft has tied IE to it's OS. It used it's OS dominance to edge out Netscape and not allow anyone to preinstall it on PCs, and edge AOL off PC desktops in preinstalls and forced them to put MSN installs on them instead. That's anticompetitive, because AOL and netscape (no matter how they sucked at the time) could not compete by going to a PC manufacture and offering a better deal. That's not the sole reason for their collapse, but by denying consumers choice, you damaged both these company's businesses.

There are no US laws that explicitly state that bundling is across the board illegal. There are no US laws that state bundling itself is a monopoly practice. There are laws that state bundling is illegal for true monopolies. Once you lesser Slashdot peons who don't understand antitrust law get that thru your thick heads, the sooner the elite of this site will allow you to join our ranks, and be allowed to use the abbreviation/.er and be cool like us;)

Think of the iPhone as an African swallow. Is it uncompetitive that Apple don't let you use it to transport coconuts?

There's no point in thinking of the iPhone as another PC because it isn't. It's a telephone with some frilly bits added on. Sure, on the inside there is a computer, but that is an implementation detail. It's Apple's telephone. They get to add or leave out whatever functionality they like. If you don't like what is missing, buy a different telephone, or a computer.

Apple has a good product with a popular app store, and attempts to over control both.
This is only going to inhibit the growth of the app store. If Apple allowed jail broken phones to use the app store, apple would make more money, the developers would be happier, and most importantly the users would be happier.

"If Apple allowed jail broken phones to use the app store..."
They do - I frequent the Apple App Store and Cydia on my jailbroken iPhone 3G. The issue is about developers being able to sell apps that aren't permitted on the Apple App Store because they use undocumented APIs, compete with Apple apps, etc...

It would be interesting to see what contract language (if any) and/or legal regime would apply if the developer of an app that HAD made it to Apple's store cloned the signature and sold it through other outlets. (And if something changed besides the signature between the release and what comes out of the store there are other issues to address.)

It might be hard to bring even the DMCA's "circumvention" provision into play if the app was identical except for the signature and was sold by the author or other

I'm working on a GWT framework for the iphone that will allow you to write a web application that looks and behaves just look a native application. A web app can get surprisingly close to being indistinguishable for native thanks to a few features in MobileSafari like:

Since it is a web app you avoid the stranglehold of the app store and the LONG processing time of applications (I know, I have applied and been accepted). You also get the freedom to update your app immediately at any time without needing apple's approval.

There are a few bottlenecks. For one, cell phone internet just plain sucks. Even 3G is rather slow, add this with the fact that iPod Touches don't have always-on internet (having to rely on Wi-Fi), the lack of certain API functions (I don't believe you can use the accelerometer, and if you can, it certainly isn't great), and the fact you are at the mercy of Safari which, compared to the core OS, gets updated quite frequently without and guarantees that the tricks you are using will be supported in the next

In fairness to 3G speeds, my Sprint phone while tethered to my PC gets 768kbps which coincidently the same speed as bottom rung DSL in many places. Not fast by any stretch but certainly fast enough for a lot of things. I was looking at ATT in Florida near Palm Beach, they initially tried to tell me only 768kbps was available and I was simply shocked, this was a couple of months ago. I had these speeds back in 1997 in rural VT so I was surprised to see it still even offered in Florida.

If they are really complaining about the 30% that apple is charging they they are just being greedy.You would pay a lot more than that if you sold it through a brick and mortar store. And setting up a good secure website with an online store isn't that cheap and easy.Between the marketing value and infrastructure the app store is worth what they charge.If you don't want to go through the apple approval process then just sell apps for people that have jailbroken phones.

No one can tell me that Apple's overhead is so high that it justifies taking 30%.

But hey, Apple has no lack of mentally retarded fanbois that would probably defend Steve "Napoleon" Jobs and his band of freedom-haters if they went around cutting off one testicle from each iPhone owner.

"Well, greedy people don't need two balls, so hard are they complain that General Jobs came in and lopped one off."

Try selling a Windows Mobile application through Handango. They'll take 50-60%. Or try selling a DVD through WalMart. They'll take a whopping 70-80%.

Besides, the App Store is not just a store, but a sales AND marketing channel, with the potential to feature your application and drive hundreds, thousands, or even millions of customers to your door. It's worth the money.

And I bet that Apple's overhead _is_ that high in many cases. Buy a single $0.99 app and Apple gets 33 cents... of which most (if not all) go

If they are really complaining about the 30% that apple is charging they they are just being greedy.

As I read TFA they're not complaining about Apple's cut. They're complaining about the process of becoming a developer and releasing products being slowed to a crawl and/or stonewalled entirely by Apple's bureaucracy.

Apple's cut has been mentioned mainly as the likely downside for itself of Apple's intransigence and a motivation for Apple to go after the alternative distributor(s) in the courts and otherwise

Is it anti-AppStore-ranting day? Must've missed that in the calender, but this is the second story of this kind that takes a non-story, blows it out of proportion, and doesn't even mention the really interesting parts (like the fact that such a store already exists, oops).

Did a/. editor break his iPhone and feels like he must vent or what's going on?:-)

The previous story must've generated a lot of ad revenue for Slashdot, so we got another one. I'm guessing it'll be a trend now, and Slashdotters will be tricked into thinking this is actually an issue and that anyone outside of Slashdot cares about it.

This is old news -- Cydia and associated apps have been available on jailbroken iPhones for at least a couple of years now! The most awesome apps I downloaded through Cydia and its Installer App were the BSD Subsystem, OpenSSH Server (0_o!), and Terminal! With those three in hand, the iPhone became just another node on my network, capable of scripted rsync backups and other automated shell customizations! I think that the realization that the iPhone is a fully functional handheld machine is the primary knowledge that Apple seeks to keep out of the hands/heads of the general public. Perhaps the goal is to sell more Macs... or maybe the goal is to soon "open up" the platform to all developers/apps and topple the monopolistic/racketeering practices of phone cos and rival closed-platform phone/handheld manufacturers, similar to what they did with iTunes and DRM? One can only hope...

This is old news -- Cydia and associated apps have been available on jailbroken iPhones for at least a couple of years now!

Very impressive of the Cydia people, considering that the iPhone was released less than twenty-one months ago. I'm willing to believe that Steve Jobs can distort time along with other facets of reality, but for independent developers to do this is astounding.

What's new is that there are now true "stores" for apps... it's no longer just installer programs that let you download and install apps. CydiaStore launched just two days ago, and has a grand total of one app for sale (Cyntact, selling at $1.00, modifies the contacts app to display the contact's profile picture next to their name, when you're in the view where you scroll through contacts). The point is that there are private enterprises now hoping to make money off of this. At the moment Cydia is fairly

Years ago Nintendo tried to enforce strict control over the creation and distribution of games for the original Nintendo Entertainment System. Tengen (aka Atari) found a way to develop cartridges for the NES (probably by reverse engineering) then successfully sued Nintendo when they tried to uphold their "exclusive distribution rights".

To me that sounds exactly the same as the AppStore situation. So why can't someone do the same to Apple?

Years ago Nintendo tried to enforce strict control over the creation and distribution of games for the original Nintendo Entertainment System. Tengen (aka Atari) found a way to develop cartridges for the NES (probably by reverse engineering) then successfully sued Nintendo when they tried to uphold their "exclusive distribution rights".

To me that sounds exactly the same as the AppStore situation. So why can't someone do the same to Apple?

They didn't have the DMCA, and Congress and the Courts hadn't yet foun

What part of "I'm carrying a unique serial number that's pinging its current GPS location to AT&T and Apple every few seconds" do you not understand? You break their contract, maybe they start going through your photos, call logs and other private information...

You break their contract, maybe they start going through your photos, call logs and other private information...

Well, this is AT&T we are talking about who illegally assisted the NSA with warrant-less wiretaps... So I imagine that they don't care how your contract status is, they might be doing it right now, all in the name of fighting "terrorists".